Courts have consistently misapplied the concept of practical obscurity online. Practical obscurity holds that information that is practically hidden, but generally accessible, should be treated as functionally private. Critics of practical obscurity argue that publicly accessible information cannot be classified as private. Courts mistakenly agree, holding that the unfettered ability of any hypothetical individual to find and access information on the Internet renders that information public, or ineligible for privacy protection. This article attempts to correct these misconceptions.

We propose using practical obscurity as a reliable metric for describing the privacy of online information. Obscurity of online information is not the exception – all information online is, to some extent, hidden. Therefore, a court’s analysis of what is “public” and “private” under various legal standards should not hinge on a dichotomous question of accessibility, but rather a determination of the degree of obscurity. Courts have created an arbitrary definition of “public information” by relying on easily identified lines drawn when users employ passwords. This understanding of privacy is out of line with normative expectation, as demonstrated by empirical research.

The mistreatment of practical obscurity is a result of courts’ reliance on technology to define what information is public. For example, courts’ reliance on passwords as the test of privacy entrenches a technologically-defined understanding of privacy, in which password-restricted disclosures are private, and all other disclosures online are public. This assumption is untenable for the Internet. Our lives are increasingly mediated through communication technologies; this interweaving of our online and offline lives has important implications for the ways we communicate, negotiate trust and gain confidence. Individuals employ a number of obfuscating techniques to create practical obscurity such as name variants, multiple profiles or identities, search invisibility and simple contextual separation when posting content. A huge portion of the public Internet, the so-called “Dark Web,” is completely hidden from search engines and only accessible by those with the right search terms, URL, or insider knowledge. Is this functionally clandestine information any different in practice than information protected by a password? This article aims to answer that question by providing a framework for a nuanced analysis of practical obscurity online.